CEO 85-52 -- July 11, 1985

CONFLICT OF INTEREST

COUNTY COMMISSIONER'S SPOUSE ATTORNEY WITH LAW FIRM REPRESENTING CLIENT BEFORE COUNTY COMMISSION

To: Mr. L. Michael Milbrath, County Attorney, Marion County

SUMMARY:

No prohibited conflict of interest exists where the spouse of a county commissioner is a member of a law firm which represents clients before the board of county commissioners. Although a county commissioner should not represent a client before his board, Section 112.313(3), (4), and (7), Florida Statutes, would not per se prohibit the law firm of a commissioner's spouse from representing clients before the county commission.

QUESTION:

Does a prohibited conflict of interest exist where the spouse of a county commissioner is a member of a law firm which represents clients before the Board of County Commissioners?

Your question is answered in the negative.

In your letter of inquiry you advise that Ms. Gail Cross is a member of the Marion County Board of County Commissioners and is married to an attorney in a local law firm. Another partner in the firm recently appeared before the Board of County Commissioners representing a client who is requesting a zoning change. You question whether a prohibited conflict of interest would be created were the Commissioner's husband or another member of his firm to appear before the Board of County Commissioners.

We previously have advised that under Section 112.313(7)(a), Florida Statutes, a board member should not represent a client before his or her board. See CEO 77-126 and CEO 78-86. However, Section 112.313(7)(a) addresses conflicts of interest based on the employment or contractual relationships of the public officer rather than of the officer's spouse.

The only provisions of the Code of Ethics for Public Officers and Employees which specifically address conflicts of interest arising out of the interests of the spouse of a local officer are Section 112.313(3) and 112.313(4), Florida Statutes. Section 112.313(3) would prohibit a county commissioner from purchasing any services for the county from a business entity of which his or her spouse is a partner. Section 112.313(4) prohibits the spouse of a public officer from accepting any compensation or payment when the officer knows or with the exercise of reasonable care should know that it was given to influence some official action in which the officer was expected to participate. Unless the Commissioner or her spouse has reason to believe that her spouse's firm was retained for the purpose of influencing her official action, neither Section 112.313(3) nor Section 112.313(4) would appear to be at issue here. There may be situations where it is clear that the law firm was retained for a matter to be decided by the Board specifically because the Commissioner's spouse is a partner in the firm. However, you have presented no information which would indicate that this was the case here.

For information concerning voting conflicts of interest under Section 112.3143, Florida Statutes, which may arise because of the interests of a spouse of a public officer, see CEO 83-59, CEO 83-29, CEO 80-84 and CEO 80-6. These opinions indicate that the Commissioner may be prohibited from voting by Section 112.3143 on a matter involving her spouse's firm, depending upon the circumstances of the particular situation. However, even though the Commissioner may not be prohibited from voting on measures in which her spouse's firm is representing a client, we suggest that abstention (as permitted by Section 286.012, Florida Statutes) in these matters would preclude even the appearance that she and her husband are benefiting solely because of her position on the Board of County Commissioners.

Accordingly, we find that no prohibited conflict of interest exists per se where the spouse of a county commissioner is a member of a law firm which represents clients before the Board of County Commissioners. In addition, you may wish to contact the Florida Bar regarding the ethical responsibilities of an attorney in this situation.